Ethics Advice, Power, and Ideology

Anonymous

Wed, 08/28/2013 - 12:48

Advisory Opinions

Within Election Law Center blogger <a href="http://www.electionlawcenter.com/2013/08/16/robert-wechsler-speech-regu…; target="”_blank”">Christian Adams' recent ad hominem attack on me</a> is an idea that is worth
discussing. He said that, in requiring candidate committees to come
to me for permission (what is commonly referred to as "ethics
advice") when I was the administrator of a public campaign financing
program, I was displaying a "joy" and "love" of power. Does this
advisory relationship actually involve
power? 
 
In my past role as administrator, and in my current role as a government ethics
adviser at large, I have never thought about advice as a matter of
power nor, I believe, do other ethics advisers. When I advised
campaign committees, it was always a matter of interpreting laws
fairly and consistently to, as far as possible, allow the
committees to do what they wanted to do to the extent it would not
break a law or create a serious appearance of impropriety that would
be harmful to the program as well as to their campaigns. 
 
When I advise officials and citizens in my role with City Ethics, I
try my best to explain my advice in terms of laws, ethics, and
fairness, and to take into account (and discuss) what is best for
the government, the community, and the individual. 
 
But where there are laws, and they are enforced, whoever interprets
them has power. Even when the adviser has nothing to do with enforcement,
the official or candidate is rightfully concerned that, if she does
not follow the advice, the law may be enforced against her.

But I smile at the thought that ethics advisers love power and take
joy in it. Of course, anyone who has power can enjoy and abuse it.
However, the ethics advisers that I know tend, if anything, to go
too far in the other direction. That is, they stick too much to the
language of the law, leaving themselves as little discretion as
possible. 
 
It is discretion that allows power to be abused. One may
appear to have power, but if one limits one's power very closely to
the language of the law, one allows oneself little discretion.
However, the less the discretion an ethics adviser allows himself,
the less he can do to prevent the sort of appearances of impropriety
and unfairness that lead to scandals and thereby undermine the
public's trust in those who govern their community. Only an ethics adviser who allows himself discretion, and hence power, can do a good job. But it is not this power that gives pleasure. It is the act of helping an official deal responsibly with a difficult situation, as well as the outcome, the preventing of misconduct, a scandal, and harm to the government (even the community's) reputation, that gives an ethics adviser pleasure. 
 
The Independence of Ethics Advice 
A truly independent ethics adviser, who is selected and overseen by
a truly independent ethics commission, has little incentive to abuse
his power. In contrast, a city or county attorney, who commonly acts
as ethics adviser, has strong incentives to abuse her power, because
those who seek advice are either her partisan or personal colleagues or
her opponents. In addition, a city or county attorney commonly seeks to
satisfy the high-level officials who selected her, whom she commonly
represents, and who can have a serious effect on her career. This is
not true of an independent ethics adviser who has no relationship
with high-level officials other than as an ethics adviser. 
 
I was just that sort of independent ethics adviser, selected by and
overseen by a board. I was also an unaffiliated voter who did not
even live in the jurisdiction I worked in. I had no incentive to
abuse my power. The only reason, in fact, would have been a personal
love for power, as Adams suggested. But his reference to my love of
power was not in any way analytical or based on any facts. It was
simply part of an ad hominem attack that arose out of an ideological
hatred for government interference in political campaigns. Adams did
not even consider the fact that those who participated in the
program did so voluntarily, unlike officials who participate in an
ethics program (although these officials did voluntarily seek
their government position or run for their office). And that they also sought
advice voluntarily. 
 
When Advice Is Not Sought 
It's interesting that the one candidate committee that would have
agreed with Adams that I and the board were abusing our power was
also the one that most rarely sought advice. The advice relationship with other candidate committees
was an ongoing conversation about what could and could not be done, and how best to accomplish their goals.
The program was new, and there were therefore few precedents, so
everything out of the ordinary needed to be discussed so that it was
done according to the rules. The rules were not arbitrary. They were
intended to ensure the proper use of public funds and to ensure
that candidate committees complied with the promises they made in
their contract with the program. 
 
One candidate committee, ironically that of the incumbent mayor who
had instituted the public campaign financing program, preferred not
to have such an ongoing conversation and, therefore, got into
trouble on a couple of occasions, mostly with respect to disclosure,
but once with respect to a close relationship with a PAC
(participating candidate committees agree not to take money from
PACs). Like Adams, it blamed me and the board rather than itself for
the failure of the advice relationship. It felt that we abused our
power. But it failed by not seeking advice that would have kept it
out of trouble in the first place. 
 
Administrative Ethics' Dislike of Ethics Advice 
Adams is not alone in disliking ethics advice. Many administrative
ethicists equally dislike it, but for different reasons. 
 
Adams' dislike derives from his libertarian, anti-government
ideology. However, this derivation is inappropriate. In a public
campaign financing program, campaign committees participate
voluntarily, so there is no coercion at all. In a conflicts of
interest program, it is not government vs. people (or against free
speech), but rather an oversight board of citizens vs. government
officials. And there isn't really a versus in either situation.
Ethics advice keeps officials from getting themselves into scandals,
and by helping to prevent ethical misconduct, ethics advice saves
taxpayers a lot of money and gives them more trust in those who
manage their community. 
 
Administrative ethics' dislike of ethics advice derives from a
pro-administrator ideology. The belief is that government administrators can successfully make
decisions with respect to their own conflict of interest issues.
Administrative ethicists generally ignore the principal reason
advice regarding conflicts of interest is more necessary than
with respect to other ethical issues. The reason is that people have
numerous blind spots that prevent them from making responsible
decisions with respect to their own conflict of interest issues. It
is important that officials learn to identify their conflict
situations, but they need to recognize that people have a great deal
of trouble making responsible decisions about them. Ethics advice
helps them make responsible decisions. 
 
But there is a similarity here between the views of libertarians and
administrative ethicists. Their views are both based on ideologies
rather than analysis, and their ideologies are both based on
freedom. One involves freedom from government interference, while
the other involves the freedom of government administrators from
interference with their ethical decision-making. 
 
The problem with their views is also similar: the views are
not appropriate to the situation of ethics advice. Ethics advice
does not impinge on action or free speech in a voluntary public
financing program. And ethics advice does not impinge on ethical
decision-making by administrators. It aids this decision-making by
providing the benefit of experience and neutrality, that is, the
benefit of advice from someone who has no blind spots and is not
caught up in a conflict situation. It also frees administrators from
difficult conflict situations, so it is not them who has to decide
that, for example, they can have nothing to do with their sister's
request for a grant. This is very different from, say, an
administrator's decision whether to support a decision not to follow
state requirements regarding low-income housing, where it would not
be appropriate for an ethics adviser, representing a citizen board,
to provide advice. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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